Matt Kaiser discusses on The Federal Criminal Appeals Blog a recent First Circuit firearms-related case in which the court seems to encourage jury nullification in marginal cases to check prosecutorial overreach. In the case of United States v. Baird, the accused had bought a firearm from another person, not knowing that the weapon had been stolen. The buyer was then prosecuted for being in possession of a stolen gun, even though he had been unaware that this was the case when he purchased it. Baird was convicted of one count of possession of a stolen firearm, for which he was sentenced to a $100 special assessment, one month in jail, and two years of supervised release.

Mr. Baird wanted an “innocent possession” instruction. He wanted to argue that he didn’t know the gun was stolen when he possessed it and that it got rid of it quickly after having learned it was.

The district court refused to give that instruction, relying on cases that said there’s no “innocent possession” defense in a possession of a stolen gun case, relying on United States v. Teemer, a prior First Circuit case on whether there’s an innocent possession defense to a felon in possession charge.

The First Circuit, reversing on the failure to give the instruction, acknowledge that Teemer held there was no such defense, but then said,

But that is not all Teemer said. While Teemer declined to create a “mandatory safe harbor” for innocent possession, it also acknowledged that “there are circumstances that arguably come within the letter of the law but in which conviction would be unjust,” such as if a felon snatched away a loaded gun from his school-aged son and then called the police to retrieve it. Therefore, although Teemer relied primarily on prosecutorial discretion and the common sense of the jury to weed out the cases warranting leniency in § 922(g) cases, we have simultaneously recognized that “extraordinary cases might arise where . . . . if the government were foolish enough to prosecute, some caveat might indeed be needed (e.g., an instruction on a necessity or justification defense.)”

I’m not sure how to read that, except as licensing a very limited kind of jury nullification.

Click through for the entire article including a link to the court opinion and references from court opinions in other marginal cases where the courts have expressed skepticism over the notion of simply trusting the government not to prosecute people maliciously.

There is clearly some level of recognition in the legal system that abusive prosecutions need to be checked, although it is unfortunately accompanied by widespread aversion to acknowledging the traditional authority of the independent juror in filling this role. In fact, jurors can and should check prosecutorial abuse by voting Not Guilty-even if a law has technically been broken-when setting aside an unjust or unjustly applied law is required for a just verdict.